AUSTIN (KXAN) –Senator Bernie Sanders reiterated his plan to legalize marijuana with an executive order at a rally in Austin over the weekend. “On my first day in office, through an executive order, we will legalize marijuana in every state in this country,” Sen. Sanders said, “and we will expunge the records of those arrested for it.” The presidential nominee has been touting his plan for months, after years of trying to push a bill through Congress.
How would an executive order work?
The Controlled Substance Act classifies marijuana alongside heroin as a schedule 1 drug, meaning it is highly dangerous, addictive and has no medical purpose. It is classified as more dangerous than methamphetamine. Reclassifying, or rescheduling, the drug is how it would be legalized.
To reclassify the drug, Sanders can sign an executive order. This starts the process, one that could last years. After the order is signed, the Attorney General would be able to then file a petition with the Department of Health and Human Services. They, along with the FDA, will review the petition. They’ll write a report, which is then returned to the Attorney General. Finally, the Attorney General can reclassify marijuana.
Legally, Sanders must follow this entire process, which, again, could take years. Certainly, longer than a President’s first one-hundred days.
Resistance to legalizing marijuana
If Sanders’ executive order succeeds, the states might ignore it. In an interview with marijuanamoment.net, University of Denver law professor Sam Kamin said the states could still prosecute marijuana differently than the federal government. Sanders would be unable to force states to follow the new policy.
Sanders could compel the states to follow the new law by withholding federal funds. The government does something similar with the national drinking age. Congress set the drinking age at 21 by withholding federal highway construction funds from the states.
A better route to legalization?
Passing a law through Congress might still be the best way to legalize marijuana. Dozens of legalization bills have moved through the Capitol in the past few months. Sanders could put pressure on Congress to pass a bill. Also, a federal law has more constitutional weight than an executive order. Meaning its less likely to be tossed out by the courts.
With 66% of Americans supporting legalization, according to a 2019 Gallup poll, the likelihood of a bill passing through Congress is higher than ever. An executive order may not even be necessary.